IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220006517 APPLICANT REQUESTS: an upgrade of his characterization of service from under conditions other than honorable to honorable or under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States, 16 March 2022 * Self-authored statement, undated * VA Form 21-0966 (Department of Veteran Affairs - Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC), 21 March 2022 * Internal Revenue Service (IRS) earnings statement, 1968 to 2014 * Illustration, undated FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, the discharge he received was based off false information. He claims he was only absent without leave (AWOL) for 96 days and his earnings statements show he was paid during the first 3 months he was declared AWOL, proving he was with his unit. a. He states he entered the Army in 1969 to get aircraft training. He attended basic training at Fort Knox, KY and advanced training at Fort Rucker, AL. He was stationed in Germany in May 1970 and volunteered to go to Vietnam in August 1970 where he suffered from malaria. b. He was sent to Guam in September 1971 where he was in the hospital for 4 months and almost died. The day after he was discharged from the hospital, he was at an officer’s club drinking tequila. The last thing he remembers about that day was waking up in the "marine stockade" and being charged with assault on an officer. He states he was sent to Okinawa, Japan, for disciplinary action and subsequently went on 30 days leave after already being 2 1/2 years of AWOL. After his leave, he returned to his unit at his new duty station where he convinced his leadership he was not AWOL, and they eventually paid him for the 3 months he was in an AWOL status. c. In 1972, while attempting to enter base, he was denied entry for not being in proper uniform. He states he walked off, got a DUI in Ironton, OH, and then turned himself into military control between July and August 1972. He spent 25 days in jail and was eventually transported to Fort Knox. d. The dates his unit recorded him as AWOL are not correct. His unit "stretched" the dates out to show he was AWOL for over 6 months, resulting in him losing his benefits. They offered him the choice of a bad conduct discharge or 2 years in jail. He was fine with no benefits until the 1990s when he started have symptoms of Agent Orange and seizures. 3. The applicant enlisted in the Regular Army on 21 April 1969. He was discharged on 26 May 1970 for immediate reenlistment. He completed 1 year, 1 month, and 12 days of active service. He reenlisted on 27 May 1970. 4. On 3 August 1970 – the applicant accepted company grade nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for absenting himself from his unit on or about 26 July 1970 to on or about 31 July 1970. His punishment consisted of forfeiture of $39.00 per month for 1 month. 5. He served in Vietnam from 4 August 1970 to 26 July 1971. While in Vietnam, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on/for the following dates/infractions: a. 13 March 1971 - company grade NJP for absenting himself from his place of duty on or about 10 March 1971 and did remain absent until on or about 10 March 1971, and for violating a lawful general regulation by being in an off-limits area on or about 10 March 1971. His punishment consisted of forfeiture of $20.00 per month for 2 months. b. 27 May 1971 - field grade NJP for failing to go at the time prescribed to his appointed place of duty on or about 24 May 1971, and for absenting himself from his place of duty on or about 23 May 1971 and did remain absent until on or about 25 May 1971. His punishment consisted of forfeiture of $130.00 per month for 2 months. c. 2 December 1971 - company grade NJP for missing his unit's movement of flight on or about 30 November 1971, and for being AWOL from on or about 30 November 1971 to on or about 2 December 1971. His punishment consisted of reduction to the rank of private (PV2) (suspended for 30 days), 7 days restriction and 7 days extra duty. 6. On 12 January 1972, he was reported in an AWOL status and on 11 February 1972, he was dropped from the rolls as a deserter. He returned to military control on 13 September 1972. 7. Court-martial charges were preferred against the applicant on 22 September 1972. His DD Form 458 (Charge Sheet) shows he was charged with one specification of being AWOL from on or about 12 January 1972 to on or about 24 August 1972. 8. On 27 September 1972, the applicant consulted with counsel and was advised of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of this request for discharge, and the rights available to him. Following this consultation, the applicant requested discharge for the good of the service under the provisions of Army Regulation (AR) 635- 200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court- martial. The applicant acknowledged that he made the request of his own free will and was not coerced by any person. He understood if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an undesirable discharge. He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran’s Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State law and encounter substantial prejudice in civilian life because of an under other than honorable discharge. 9. The applicant submitted a statement on his own behalf with his request for discharge wherein he states "I want a discharge. I joined the Army to get away from trouble and reenlisted because I had trouble in Germany"…"I just can't make it in the Army, and I don't care what kind of discharge I get"…"If I don't get out, I'll just get messed up and go AWOL again". 10. On 28 September 1972, the applicant's immediate commander recommended approval of the request for discharge and the applicant be issued an undesirable discharge certificate. He noted, "During the period from his enlistment to present, this soldier has been assigned to various duty stations. His conduct has rendered him triable by court martial under circumstances which could lead to a bad conduct or dishonorable discharge. Based on the applicant's previous record, punishment can be expected to have minimal rehabilitative effect and the total lack of any ultimate benefit to the Army or society accomplished by punishment would seem to justify the granting of this request". 11. On 28 September 1972, the applicant's intermediate commander concurred with the recommendation for the request for discharge and recommended the applicant be issued an undesirable discharge certificate. 12. The separation authority approved the recommended discharge on 4 October 1972, directed the applicant be reduced to the rank/grade of PVT/E-1, and he be issued an undesirable discharge certificate. 13. The applicant was discharged on 13 October 1972. His DD Form 214 shows: a. He was discharged under the provisions of AR 635-200 chapter 10, for the good of the service – in lieu of trial by court-martial, in the rank/grade of PVT/ E-1. His DD Form 214 shows his service was characterized as under conditions other than honorable. He received a Separation Program Number of 246, and a Reentry Code of 3b. He completed 1 year, 8 month, and 24 days of net active service during the covered period and had 237 days lost time from 12 January 1972 to 4 September 1972. He was authorized the following awards: Vietnam Service Medal and Vietnam Campaign Medal with device (1960) 14. He provides: * VA Form 21-0966, dated 21 March 2022, that shows he submitted a claim for compensation benefits to the Department of Veteran Affairs * IRS earning record, covering the period from 1968 to 2014, that shows his annual earnings from each year * illustration of a military vehicle with the words "1970 My Home on Wheels 1971" 15. Discharges under the provisions of AR 635-200, chapter 10, states a Soldier who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provided that a Soldier who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier, or, where required, after referral, until final action by the court-martial convening authority. Commanders will ensure that a Soldier is not be coerced into submitting a request for discharge for the good of the service. The Soldier will be given a reasonable time to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. After receiving counseling, the Soldier may elect to submit a request for discharge for the good of the service. The Soldier will sign a written request, certifying that they were counseled, understood their rights, may receive a discharge under other than honorable conditions, and understood the adverse nature of such a discharge and the possible consequences. A discharge under other than honorable conditions was normally appropriate for a Soldier who is discharged for the good of the service. However, the separation authority was authorized to direct a general discharge certificate if such was merited by the Soldier's overall record during their current enlistment. For Soldiers who had completed entry level status, characterization of service as honorable was not authorized unless the Soldier's record was otherwise so meritorious that any other characterization clearly would be improper. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is used for a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct or for the good of the service. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court- martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006517 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1